State Ex Rel. Arbeiter v. Reagan

427 S.W.2d 371, 1968 Mo. LEXIS 979

• Court: Supreme Court of Missouri
• Decided: April 8, 1968
• Docket: 52923
• Status: Published

Opinions

EAGER Judge.

This is an original proceeding in prohibition instituted in this Court. It seeks to prohibit the judge of the Assignment Division for Criminal Causes in the City of St. Louis from enforcing an order for a subpoena duces tecum and from disclosing the contents of certain juvenile court records to the Circuit Attorney. We issued our provisional rule, return was filed and the case has been argued and briefed here. There are no controversies as to essential facts.

Joseph Franz Arbeiter, 15 years of age, was arrested by the St. Louis police on Dec. 3, 1963, suspected of certain criminal offenses. He was questioned at some length by the police, and his statements indicated that he had killed a woman who had been stabbed very recently in her apartment by an intruder. After the interrogation, and around midnight on Dec. 3, the boy was turnéd over to the juvenile authorities. He was detained in its detention facilities until approximately Dec. 30, when the juvenile court entered an order certifying him to the criminal courts for trial under the general criminal law, and dismissed the petition filed in the juvenile court. He was then indicted for first degree murder, tried, convicted, and sentenced to imprisonment for life. Upon appeal, the judgment was reversed by this Court, solely upon the ground that his detention and interrogation by the police and the admission in evidence of his statements to the police were in violation of those provisions of the juvenile code which required that he be taken “immediately and directly before the juvenile court or delivered to the juvenile officer * * Section 211.061, RSMo 1959, V.A.M.S. (to which revision all statutory citations will refer). Further facts are shown in our prior opinion, which appears at State v. Arbeiter, 408 S.W.2d 26. Upon reversal, the case was remanded for another trial.

On Jan. 6, 1967, the Circuit Attorney filed a motion in respondent’s (criminal) court for the issuance of a subpoena duces tecum to the custodian of the records of the juvenile division for the production of any and all records of the juvenile; it was alleged in the motion that he had been certified to the criminal court for trial for murder and that the movant verily believed that he, Arbeiter, had made statements and admissions to the personnel of the juvenile division concerning the murder, which would be shown in the records; also, that such would be admissible in evidence. The prayer was for production, with permission to inspect and copy, except for those statements made at any formal hearing. The prayer also asked for the names and addresses of all personnel who had questioned the juvenile or witnessed any statements.

Appointed counsel for the defendant (who have at all times been most diligent and effective) filed objections to that motion which we need not detail, for substantially the same issues are discussed at length in their present briefs. On March 17, 1967, respondent, having previously held an evi-dentiary hearing, entered an order that the subpoena be issued returnable on April 5, 1967, and it then set the criminal case for trial on April 17, 1967. The present petition for prohibition was filed on March 28, 1967, which has suspended all further proceedings. At the hearing on Feb. IS, 1967, the principal testimony was that of a juvenile officer who had produced the records, and the testimony was, in substance, as follows: that he had brought with him the “social file” of this juvenile which contained their investigative reports, the police reports, correspondence, and a summary by a deputy juvenile officer; that these dealt generally with the type of person involved, with any need for psychiatric reports, and any “collateral” contacts with an outside agency; that the summary is regularly presented to the court at the time of hearing; that when a juvenile officer talks with a juvenile he usually makes notes which may be incorporated into the summary; that this file did not include a record of any hearing before the juvenile judge, and that the “legal file” was kept in the clerk’s office; that the chief purpose of assembling the present file was for presentation to the judge, for his use in the disposition of the matter; that, until recently (and in 1963) a juvenile was not advised that what he said might be used against him in a criminal action, nor of any constitutional rights, and that they felt that the juvenile should be “at ease”; that the juvenile was ordinarily told that what he said was for the purpose of the juvenile hearing; that at the hearings the entire file would be submitted to the judge, but there might also be oral testimony; that the file which he had produced was really the substantive file, the other being “legal papers”; that a transcript was taken at hearings only if counsel or the judge so directed, and that the present file contained none.

Following the order for the subpoena, the respondent notified the parties that he would on April S, unless prohibited, open the juvenile records for inspection by the Circuit Attorney “in the preparation and prosecution” of the murder charge. We thus arrive at the point of controversy. We have omitted the legal contentions set out in the petition for the writ and those included in the return, for the same basic issues are raised in the briefs and will be discussed.

We shall first state the fundamental contentions of the parties. The relator asserts that the purpose and intent of the juvenile code (§§ 211.011-211.431) is that all files and records of that court are confidential and privileged, that the juvenile court retains jurisdiction thereof even after a juvenile is certified for trial under the general law, that the records are compiled in an atmosphere of confidential relationship, and that the production and disclosure of such records would be in violation of sundry constitutional rights of the juvenile (Federal and State), including due process, the prohibitions against self-incrimination, and the right to counsel. More or less incidentally, he makes the point that the respondent has no authority to issue a subpoena duces tecum for these records because such is a “discovery process” and that there is no authority for this by statute or rule. The respondent answers: that he does have the power and authority to issue the subpoena and to disclose the contents of the records, first, because Rule 25.19, V.A.M.R. so permits, and, secondly, because the juvenile code contemplates that when that court dismisses its pending proceedings and transfers a juvenile for trial in the criminal courts under the criminal law, the juvenile has thus been relegated for all purposes to the operation of the general law and that the prior privilege of his records is no longer effective; or, in other words, that the juvenile court has the power to thus waive and has waived the privilege formerly attendant upon its files and records, and that its jurisdiction has entirely ceased.

We deal, first, with the more or less incidental contention that the Court has no power to issue a subpoena duces tecum under Rule 25.19 because it is not a rule of “discovery”; this consideration is entirely apart from the question of privilege. It is true that it has been said, rather broadly, in State v. Kelton, Mo., 299 S.W.2d 493, and State v. Engberg, Mo., 377 S.W.2d 282, that this rule was not intended as a rule of discovery. In Engberg, the precise question was a ruling on a motion seeking a blanket inspection of all papers in the possession of the police and the prosecuting attorney. The motion there was not within the stated purpose of the rule. The Court there said, however, referring to the rule at loc. cit. 286: “* * * the court may direct the production and inspection of the designated documents or objects before the court prior to trial or their being offered in evidence if by doing so the trial of the case will be expedited. State ex rel. Phelps v. McQueen, Mo., 296 S.W.2d 85, 89[1]; State v. Kelton, Mo., 299 S.W.2d 493, 497 [10].”

In State ex rel. Phelps v. McQueen, Mo., 296 S.W.2d 85, at loc. cit. 89, the Court said: “We hold that our Rule 25.19 is not intended as a rule of discovery. Rather, its purpose is to enforce production of documents or objects at the trial that contain evidence material and relevant to the issues and to require prior production and inspection of such records or objects if prior production and inspection will expedite the trial.’’ (Italics ours.)

The wording of the rule itself is, in pertinent part, as follows: “The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.” We need not indulge in an exercise in semantics concerning the meaning of “discovery.” The intent of this rule should not be limited too narrowly when we consider that there is no broad system of discovery in criminal cases in Missouri. Rule 25.19 plainly says that in issuing a subpoena duces tecum the Court may order the papers or objects produced prior to the trial and may permit them to be inspected by the parties and their attorneys. The production of these files and records and the consideration of the questions arising therefrom during the trial could only cause confusion and delay. Rule 25.19 does not permit unlimited discovery, nor should it be construed to do so. It is doubtful, to say the least, whether the subpoena duces tecum issued here constitutes “discovery,” but we need not quibble over that. Under the very terms of the rule the respondent had the general power to issue the subpoena and require the production of the records before it prior to the trial.

Counsel for relator has briefed at length not only the right of respondent to disclose the contents of the records to the circuit attorney, but the admissibility at the trial of any statements made by the juvenile to personnel of the juvenile court. We do not propose to rule the latter question in this proceeding, for it is not involved.

Relator’s essential position is that the juvenile code, considered in its entire context, places a shroud of confidentiality over all relations and communications between the juvenile and all juvenile court personnel, and that this status attaches, to all files and records and continues indefinitely (and probably permanently) even after a juvenile is transferred to the criminal courts for trial; this, with the exception of “peace officers’ records” to be referred to later. Counsel argue that, as indicated by the evidence here, the juvenile is encouraged to be “at ease,” to talk only for the benefit of the juvenile authorities and court, and that he was not (in 1963) advised of any of the constitutional rights legally attendant upon the interrogation of an adult. Further, counsel say that since Arbeiter’s constitutional protections were thus more or less traded for the confidential status inherent in the proceedings, those rights would be impaired if the court now violates the confidence; and also that in such event much of the juvenile code may be unconstitutional. We shall not pursue these latter intricate problems, for they will become material only if and when evidence from the juvenile files is offered in evidence at the trial. The rights of juveniles, including those of due process, the right against self-incrimination, and equal protection, have been extensively treated in the cases cited by relator, including Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84; Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161; Edwards v. United States, 117 U.S.App.D.C. 383, 330 F.2d 849. Kent, involved the validity of an order transferring a juvenile for trial in the criminal courts, and the basic constitutional requirements for the making of such an order; Harling, involved the admissibility of prior statements of a juvenile at his criminal trial; Edwards, involved the admissibility of evidence gathered as the result of a confession of the juvenile; Gault, dealt at great length with the steps constitutionally necessary to the making of a valid order committing a juvenile to a training school because of delinquency, with some discussion as to the general admissibility of the juvenile’s statements. None of these cases touched upon our present problem. One may readily see from an examination of these opinions that the substitution of the “parens patriae” relationship (criticized in Gault/ supra) of the juvenile authorities for the right of the juvenile to constitutional protections, has been considerably shaken; however, juvenile proceedings are not criminal proceedings. State ex rel. Matacia v. Buckner, 300 Mo. 359, 254 S.W. 179; State ex rel. Shartel v. Trimble, 333 Mo. 888, 63 S.W.2d 37; and the juvenile court need not, as yet, proceed with all the formalities of a criminal court; Kent, supra. We forego further discussion of this subject here; those principles will require careful study if and when any statements of Arbeiter are offered in his criminal trial, or perchance considered in pretrial proceedings.

Counsel for relator rely particularly upon §§ 211.271 and 211.321 in support of their contentions that there should be no disclosure. Insofar as material here, § 211.271 is as follows: “2. No child shall be charged with a crime or convicted unless the case is transferred to a court of general jurisdiction as provided in sections 211.011 to 211.431. 3. Evidence given in cases under sections 211.011 to 211.431 is not lawful or proper evidence against the child for any purpose whatever in a civil, criminal or other proceeding except in subsequent cases under sections 211.011 to 211.-431.” Section 211.321 is in full as follows: “1. The proceedings of the juvenile court shall be entered in a book kept for that purpose and known as the juvenile records. These records as well as all information obtained and social records pre--pared in the discharge of official duty for the court shall be open to inspection only by order of the court to persons having a legitimate interest therein.

“2. Peace officers’ records, if any are kept, of children, shall be kept separate from the records of persons seventeen years of age or over and shall not be open to inspection or their contents disclosed, except by order of the court. This subsection does not apply to children who are transferred to courts of general jurisdiction as provided by section 211.071.

“3. During the month of January in each year, the court may make an order to destroy all social histories and information other than the official court file, pertaining to any person who has reached the age of twenty-one years.”

By Section 211.031 the juvenile court is given jurisdiction when a child “is alleged to have violated a state law or municipal ordinance.” Section 211.071 is, in its pertinent parts, as follows: “In the discretion of the judge of the juvenile court, when any petition under sections 211.011 to 211.431 alleges that a child of the age of fourteen years or older has committed an offense which would be a felony if committed by an adult, * * * the petition may be dismissed and such child or minor may be prosecuted under the general law, whenever the judge after receiving the report of the investigation required by sections 211.011 to 211.431 and hearing evidence finds that such child or minor is not a proper subject to be dealt with under the provisions of sections 211.011 to 211.431.” No attack has been made here upon the proceedings by which Arbeiter was transferred to the criminal court.

The essential issue here is whether the order of the juvenile court relinquishing and transferring jurisdiction is legally the equivalent of an order of that court permitting the inspection of the records of the juvenile court by the parties in the criminal cause. Or to put the issue in slightly different form, it is whether thereby the juvenile court transferred to the criminal court the right to open the records for inspection. If such was the effect, the contemplated procedure cannot be a violation of the statutes. It has been held, generally, that the jurisdiction of the juvenile court ceases upon the making of a transfer order. Ex parte Bass, Banc, 328 Mo. 195, 40 S.W.2d 457. The file that has been produced on subpoena is the “social” file, previously referred to. Counsel for relator make the point that § 211.321(1) treats the social records differently from the “Peace officers’ records,” § 211.321(2) in that the latter are subject to inspection upon transfer without an order of the juvenile court, whereas the former may only be inspected by an order of the Court. Counsel further suggest that the file in question was a part of the “evidence given” before the juvenile judge and, therefore, inadmissible under the express terms of § 211.271. As already suggested, we have not yet reached the question of the admissibility of any evidence. It has been ruled in several Missouri cases that proceedings held in a juvenile court and the disposition of a juvenile therein, may not be shown later in evidence by way of impeachment, when the juvenile is a witness. State v. Coffman, 360 Mo. 782, 230 S.W.2d 761; State v. Tolias, Mo., 326 S.W.2d 329, 333; State v. Cox, Mo., 263 S.W. 215. That theory has been criticized. 3 Wigmore on Evidence 3rd Ed., § 1041, but in any event that is not the issue here. Generally speaking,—“The object of the waiver decision is to weed out those children who cannot benefit from juvenile court treatment.” 79 Harvard Law Rev., p. 793, and see also State v. Van Buren, 29 N.J. 548, 150 A.2d 649.

We may and do assume that after the transfer of jurisdiction, the Circuit Attorney is one “having a legitimate interest” in the juvenile records; their contents could have been released expressly to him upon order of the juvenile court at the time of transfer, or before or after that time. We are cited to no case, in Missouri or elsewhere, which rules our precise question. The writer has examined texts, annotations, and law review articles in an independent research and has found nothing directly in point. We are thus relegated to a consideration of general principles, and a construction of our statutes. We deem it unnecessary to discuss in any detail the broad purposes of the juvenile laws. One object is to effect, if possible, rehabilitation instead of punishment; another is to protect the juvenile from the stigma which would attach to h'is prosecution as a lawbreaker in the criminal or municipal courts. We are told, however, that in practice juvenile records are widely circulated to law enforcement officers, social agencies, the FBI and even to prospective employers. Harvard Law Rev., supra, loc. cit. 800; 67 Columbia Law Rev. 286-287; and see particularly the discussion in Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, at loc cit. 1442, 18 L.Ed.2d 527, where the Court said that the claim of secrecy “is more rhetoric than reality.” In the present case no possible secrecy remains. Arbeiter has been tried once for murder in the criminal court, with the attendant publicity; he has been convicted and given a life sentence and his conviction has been reversed on appeal and the cause remanded. The case is reported in the Southwestern Reporter. At the trial his various incriminating statements to the police were disclosed in evidence, although the case was reversed for that reason. As a practical matter, the only possible objective of the relator in seeking to maintain now the supposed secrecy of his juvenile files, is to prevent the use of any admissions or incriminating statements which the juvenile may have made. There may be such in the files and there may not; there may also be other information material and vital to the prosecution and wholly unrelated to any such statements. The juvenile court has not declined to open the files to the Circuit Attorney, for it is not shown that any such application was made.

The ultimate purpose of the transfer of a juvenile, such as was made here, is to protect the public in those cases where rehabilitation appears impossible. In State v. Van Buren, supra, the Court said, at 150 A.2d loc. cit. 654: “Thus a case may be referred to the prosecutor when the circumstances indicate that, if the charge is ultimately established, society would be better served by the criminal process by reason of the greater security which may be achieved or the deterring effect which that process is thought to accomplish.” The seriousness of such matters to the public, as well as to the juvenile, is well illustrated in the following language contained in the separate opinion of Mr. Justice Harlan in Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, at loc. cit. 1465-1466, 18 L.Ed.2d 527: “No more evidence of the importance of the public interests at stake here is required than that furnished by the opinion of the Court; it indicates that ‘some 601,000 children under 18, or 2% of all children between 10 and 17, came before juvenile courts’ in 1965, and that ‘about one-fifth of all arrests for serious crimes’ in 1965 were of juveniles. The Court adds that the rate of juvenile crime is steadily rising. All this, as the Court suggests, indicates the importance of these due process issues, but it mirrors no less vividly that state authorities are confronted by formidable and immediate problems involving the most fundamental social values.” In a few states original jurisdiction of juveniles between certain ages is vested initially in the criminal court which may then, in its discretion, transfer the person to the juvenile court or retain jurisdiction. 67 Columbia Law Rev., loc. cit. 311-312. In Illinois, the power of transfer is vested initially in the prosecuting attorney. Illinois Ann.Stat., Ch. 37, §§ 702-7(3).

It is our conclusion that when the juvenile court relinquished its jurisdiction over this juvenile and transferred all further proceedings to the criminal court (i. e., respondent, for our purposes) it thereby vested the latter court with the power and authority to open the juvenile files and records for inspection by “persons having a legitimate interest therein,” and that such “persons” certainly include the Circuit Attorney and relator’s counsel. This ruling does no violence to the differing references in § 211.321(1) and (2) to juvenile records generally and to peace officers’ records, for any and all may be inspected upon proper order; we hold that respondent may properly make the order. This is not to infer, however, that any such files and records are to be disseminated generally to other persons, and the limits of the inspection should be rigidly enforced. We hold that such disclosure is not contrary to the intent of our juvenile statutes, and further that no constitutional question is thereby involved. The “confidentiality” of such records is primarily a legislative matter and purely a matter of state concern. Nor is it necessary, in the present posture of this case, to pass upon the constitutionality of any part of our juvenile code.

We emphasize again that we do not rule, directly or indirectly, upon the admissibility of any admissions or statements which may conceivably be found in the juvenile records. There will be time for mature consideration of that question when and if any such material is offered. Counsel for relator has cited substantially all of the controlling cases, including Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84; Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224; Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325; Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161; Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The provisional rule in prohibition is quashed and respondent is directed to proceed as indicated in this opinion.

HOLMAN, C. J., and STORCKMAN, J., concur. FINCH, J., concurs in separate concurring opinion filed. HENLEY and DONNELLY, JJ., concur and concur in separate concurring opinion of FINCH, J. SEILER, J., dissents in separate dissenting opinion filed.